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Misused, maligned and misunderstood, the Data Protection Act 1998 is in trouble. The bane of many social workers' lives for years, it has been hitting the headlines for all the wrong reasons.

Following the revelations about Soham murderer Ian Huntley's history with underage girls - the electronic records of which were deleted by Humberside police - came the deaths of a couple in their eighties after British Gas cut off their supply without notifying social services.

Both Humberside police and British Gas pleaded innocence, arguing that the act prevented them from passing on the pertinent information. But the man charged with enforcing the act throughout the UK, information commissioner Richard Thomas, has rejected the claim in both cases.

He says in cases where the results of the act seem to "offend common sense", organisations should seek guidance and clarification rather than "hide behind data protection as a smokescreen for practices which no reasonable person would ever find acceptable". And he says: "the data protection principles are largely matters of common sense and fairness."

But common sense is anything but common. A law that relies on the common sense and judgement of thousands of organisations and individuals in different circumstances is simply asking for trouble. And, although legislation is certainly necessary to protect people from a Big Brother state where government and commercial bodies know everything about everybody, the act is widely acknowledged - most recently by Thomas himself - to be "a cumbersome and inelegant piece of legislation".

Social care has more problems with this piece of legislation than most. Much of the information accessed by social care professionals is sensitive, yet sharing it quickly and appropriately can save lives. In 2000, aware of the difficulties, the Department of Health published lengthy guidance for social services departments.¹ Yet, reading this complex and legally phrased document, one would be forgiven for wondering whether it is any clearer than the act itself.

More recently - and possibly in response to the difficulties many of the government's flagship identification, referral and tracking pilots have encountered around information sharing - the Department for Constitutional Affairs published a further 40-odd pages of advice and guidance for public authorities on their responsibilities.² Unfortunately, like the DoH attempt three years earlier, it is difficult to imagine anyone who is not a lawyer coming away from this latest set of guidance feeling any the wiser.

This all leaves many social care staff confused by their data protection responsibilities. They are uncertain where the boundaries lie and anxious about stepping over a line they cannot see. User-friendly, accessible guidance is badly needed.

Last week, the Information Commissioner's Office (ICO) announced its response to the recent furore over the act and its interpretation. Thomas's office is working on "more practical and user-friendly" guidance for a range of sectors. It is asking again for advice from practitioners about how to make data protection simpler and will publicise and strengthen the helpline which offers advice and assistance for organisations with data protection queries.

As part of this, the ICO wants umbrella bodies and senior organisations, including the Association of Directors of Social Services and Association of Chief Police Officers, to come forward with what they think will be workable guidance. The ICO will help with the finishing touches.

ICO assistant commissioner David Smith says: "There are certainly problems with the act - it's a long and, in some places, difficult piece of legislation. But I'm not sure whether scrapping it and starting again would solve the problem, partly because it stems from an EC directive that has to apply across the EU. Yes, if you were to sit down with a blank sheet of paper you'd probably write something much simpler and easier to follow. But that's not going to happen, so we have to make the best of the law that we have. And it does contain some fairly simple messages - such as treating people fairly, not keeping information longer than necessary and so on.


"The element of judgement is unavoidable. What's easy for people is to give them simple instructions, which they just follow. But in many areas, including social services, you can't reduce what people have to do to a set of simple instructions. You can produce guidance for people. It's possible for us to sit down and produce that, but we run the risk of missing out vital elements which those who work within these organisations will know about.

"We'd like senior level organisations to come up with specific guidance which reflects the complexity of what they have to achieve, and we'd be extremely happy for them to come and talk to us about it."

The ICO is charged with advising and assisting on the act and enforcing it. But, as Smith admits, there is little that can be done under the act when people are harmed as a result of agencies deleting information they hold or failing to share it. He says: "The act is primarily about protecting people from having their information used improperly. In Humberside the police authority had deleted files, which may be negligent, and people may be able to take action under other legislation. But it certainly isn't a breach of the act."CC

- Data protection helpline is01625 545745. The Information Commissioner's Office can be contacted at www.informationcommissioner.gov.uk

¹ Department of Health, Data Protection Act 1998, Guidance to Social Services, 2000

² Department for Constitutional Affairs, Public Sector Data Sharing. Guidance on the law, 2003

View on the ground 

Stuart Macpherson, is a duty officer for an independent fostering agency  
"The act is a cruise liner where you need a speed boat. It is heavy and huge, written in impenetrable jargon and 'legalese'. For example, a person is a 'data subject'. It ought to be rewritten in simple language with common sense. But a first step would be a simple guide to the main demands and the limitations that those demands apply." 

Deborah Badley is a youth offending social worker in Birmingham
She says that, rather than protecting people, the act can have the opposite effect. "Data protection becomes a real issue when seeking accommodation for young people. Most hostel workers want to have copies of the pre-sentence report, but this can't be shared. The response is often that they won't progress the application any further."  

Jacqueline Castles is an independent social care consultant
She believes that the lack of clear in-house guidance is the problem. "I would devise protocols in the light of organisational understanding of the act, and then have them 'legalled'. I see a failure to develop strategies and procedures, followed by hiding behind allegedly restrictive legislation. Bodies such as the Association of Directors of Social Services and Association of Chief Police Officers should also take more of a lead in anticipating problems thrown up by new legislation and nudge their members to take a lead in their own organisations. You don't wait until a problem arises to start thinking about how to solve it."